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13 June 2014 0 Comments Posted in Employment, Opinion

Repeating restrictive covenant in undertaking

Posted by , Partner

In Capgemini India Private Limited and another v Krishnan and others, the High Court has refused the employer’s application for an interim injunction where employees had given undertakings to observe a restrictive covenant which they subsequently tried to argue was in restraint of trade and unenforceable. In doing so, the Court considered the two conflicting public policy points: one of which was the effect of a restraint of trade, and the other was that the terms on which a dispute is settled should be respected. It took into account Court of Appeal guidance that the terms of an agreement to settle a dispute could nonetheless be challenged but considered it was not for the party who relied on the agreement to prove it was reasonable but for the party seeking to avoid it to prove the particular grounds that justified it being set aside.

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Musicians in injunction score

Posted by , Partner

Another case where the facts are probably more engaging than the decision is Ashworth and others v Royal National Theatre.

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Guidance to Tribunals on whistle blowing

Posted by , Partner

In Blackbay Ventures Limited t/a Chemistree v Gahir, the EAT has provided guidance to Employment Tribunals on dealing with whistle blowing cases. It states that, when dealing with a large number of disclosures, the Tribunal should identify each separate disclosure and the basis upon which it is said to be qualifying and protected. It must also identify each individual breach of a legal obligation where this is the case and should not simply lump together a number of complaints. Furthermore where a worker alleges they have suffered a detriment which is short of dismissal, the Tribunal must identify this detriment and the date on which it occurred, or the date on which there was an alleged failure to act. If there is no date of a deliberate failure to act directly, the failure to act will be deemed to take place when the period within which it might reasonably have been expected to have taken place has expired.

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Removal of dog was discriminatory

Posted by , Partner

In a case more interesting for its facts than its principle, Commissioner of Police of the Metropolis v Keohane is an EAT decision upholding the Employment Tribunal decision regarding a pregnant police dog handler who was found to have suffered pregnancy and maternity discrimination when one of her narcotic dogs was reallocated when she announced she was pregnant and her request to have the dog returned before the end of her maternity leave was rejected. The EAT held that the Tribunal was entitled to find that the decision making process to remove the dog was because of her pregnancy, although the Tribunal was incorrect to find that the risk to her career at a result of the dog’s removal did not amount to a particular disadvantage for the purposes of an indirect sex discrimination claim. The rationale behind this is that her status as a dual narcotics dog handler enhanced her career prospects and enabled her to earn overtime.

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12 June 2014 0 Comments Posted in Employment, Opinion

“Johnson exclusion” does not preclude constructive dismissal claim

Posted by , Partner

In Gebremariam v Ethiopian Airlines Enterprise t/a Ethiopian Airlines the EAT has held that what is commonly known as the “Johnson exclusion” (the principle that an employee who is dismissed cannot recover damages at common law for the way in which the dismissal took place) did not prevent an employee selected for redundancy, notice for which was then withdrawn, from relying on a flawed redundancy selection process as a fundamental breach of contract which entitled her to resign and bring a constructive unfair dismissal claim.

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29 April 2014 0 Comments Posted in Employment, Opinion

Surrogate mothers not protected by EU law

Posted by , Partner

In two cases before the ECJ, CD v ST and another case, the ECJ has held that there was no breach of EU law to deny to mothers who had children by a surrogate, maternity or adoption leave and pay. They had not been pregnant so they were not entitled to maternity leave, and since a man who had organised a surrogacy would be treated the same, there was no sex discrimination.

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Dismissal for post-natal depression was not discriminatory

Posted by , Partner

In Lyons v DWP Job Centre Plus, the EAT upheld a Tribunal decision that a woman who was dismissed for having being off sick for post-natal depression for several months following the end of her maternity leave was not discriminated against either because of pregnancy or sex. She was outside the protected period of pregnancy and maternity leave, and in consideration of the ECJ decision in Brown v Rentokil Limited it was not necessarily discriminatory because of sex where a woman is dismissed for a pregnancy related absence where her maternity leave has ended. Sex discrimination in such circumstances will only occur if the employer treats her less favourably than it would have treated a sick man in similar circumstances. A surprising decision but an interesting one nonetheless.

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What is gross misconduct?

Posted by , Partner

In Eastland Homes Partnership Limited v Cunningham, the EAT has overturned a Tribunal finding of unfair dismissal where the employee of a residential care home was dismissed for failing to tell the employer that he and his wife were named beneficiaries in the will of one of the residents. Although the code of conduct was not available to the EAT, it appeared from the Tribunal judgment that it prohibited staff from accepting gifts in excess of £50 and suggesting that any benefits received should be declared and approved by management. The Tribunal judgement contained no analysis as to why it considered the employee’s actions did not amount to gross misconduct in circumstances where they were a breach of the care home’s code of conduct.

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Covert recordings deemed admissible

Posted by , Partner

In Punjab National Bank (International Limited) and others v Gosain, the EAT has upheld a Tribunal decision that undercover recordings made by an employee of the public and private discussions of the panel at her grievance and disciplinary hearings could be admitted as evidence at a final hearing. The EAT held that the private comments made by the panel were not part of their deliberations on the matters in questions and this case could be distinguished from its decision in Amwell v School Govenors v Dogherty. This case held that the recording of the private deliberations of the disciplinary panel would not be admissible on the grounds of public policy. However in the instant case, the EAT held that the Tribunal was entitled to decide that the recordings were admissible in evidence and their relevance could be ascertained by the Tribunal at the final hearing.

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Calculation of protective award under TUPE

Posted by , Partner

In London Borough of Barnet v Unison and another, the EAT has held that the Tribunal was wrong in the approach it took to calculating protective awards arising from an employer’s failure to provide union representatives with comprehensive information about its agency workers during redundancy and a TUPE consultation. The Tribunal had wrongly identified the starting point as being the top end of the protective award, namely 13 weeks. The EAT, following the decision in Suzie Radin Limited v GMB and others, set aside the awards of 60, 50, and 40 days for different groups of affected employees and remitted the question of the level of the award back to the original Tribunal. The Suzie Radin case stated that the starting point should be the maximum only in circumstances where the employer has done absolutely nothing to comply with the obligations under TUPE, and not automatically applied where employers have carried out some form of consultation.

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Tasks of short term duration under TUPE

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In Robert Sage Limited (t/a Prestige Nursing Care Limited) v O’Connell and others, the EAT has upheld a Tribunal decision on the meaning of “intends” in the “task of short term duration” exception to the TUPE service provision change rules.

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TUPE – Identifying activities in SPC

Posted by , Partner

In Qlog Limited v O’Brien and others, the EAT had upheld an Employment Tribunal decision that the activities carried out by the incoming service provider were fundamentally or essentially the same as those carried out by the outgoing service provide for the purposes of the service provision change under TUPE. The EAT held that, in coming to its decision, the Tribunal was entitled to take account of the description of the activities in the contractual documentation, which confirmed that, under the contract, the incoming provider was required to provide the same services as the outgoing provider. However there is slightly more to this case than meets the eye in terms of the facts.

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